Masking judiciary problems

Masking judiciary problems

Last week, we carried an editorial comment raising concerns about the operations of our judiciary. In that comment, we stated that there were serious problems with our judiciary.
But what is shocking is the silence of our judges on all this. They all know that things are not well in the judiciary. But they are not speaking out or doing anything visible to correct the situation. The warning signs are being signaled by all sides of our political and social spectrum.

Not very long ago, State House, through Amos Chanda, issued a warning to the judiciary, to our judges that “if they do not exhibit responsible conduct, the country will consider judicial reforms the Kenyan way”. What does the Kenyan way mean? It means dissolving the whole judiciary and making every judge who wants to continue in their positions to reapply. It means that those who are not taken back will lose all the retirement benefits they thought they had secured. What will happen to those who are not taken back? What will they do in life? Private practice? The law doesn’t allow! Consultancies? Probably! But who will hire discredited and disgraced former judges?

We have had ruling party cadres warning judges and reporting them to the police. We had Davies Chama, as secretary general of the Patriotic Front, warning judges Mwila Chitabo and Isaac Chali to stop making rulings that were against decisions made by Edgar Lungu. Did they respond? No, they didn’t. Why? Were any contempt proceedings raised against Davies? No, why?

We also had Patriotic Front cadres Alfred Mbewe and Emmanuel Mtonga formally writing to the Judicial Complaints Authority, seeking the removal of the entire Constitutional Court bench for alleged breach of the Constitution.

In their letter to the Judicial Complaints Authority, they claimed that the judges were incompetent and violated the Constitution, judicial oaths and Section 5 of the official Oaths Act. What happened to them and their complaint? Nothing! Why?

It is not only the ruling Patriotic Front leaders and cadres who have issues with the judiciary. The opposition has probably even more issues with the judiciary than the ruling Patriotic Front. Ordinary members of the public have also raised many issues concerning the conduct of the judiciary in general and some named judges in particular. But what has been the response of the judiciary? Dead silence! Why?

It is like saying ‘let the dogs bark; there is nothing they can do to us’. For our judges, it seems they think there is nothing to worry about – they have their good salaries and secured pensions for life with security of tenure of office. Their conduct reminds us of the ostrich burying its head in the sand, refusing to confront or acknowledge any danger or problem. The story of the ostrich burying its head in the sand is an interesting one. This comes from the supposed habit of ostriches hiding when faced with attack by predators. The story was first recorded by the Roman writer Pliny the Elder, who suggested that ostriches hide their heads in the bushes. Ostriches don’t hide, either in the bushes or sand, although they do sometimes lie on the ground to make themselves inconspicuous. The ‘burying their heads in the sand’ myth is likely to have originated from people observing them lowering their heads when feeding. The story also relies on the supposed stupidity of ostriches. The notion is that the supposedly dumb ostrich believes that if it can’t see its attacker, then the attacker can’t see it. This was nicely reformed as a joke on Douglas Adams’ ‘Hitchhiker’s Guide to the Galaxy’, in which the ‘Ravenous Bugblatter Beast of Traal’ was described as ‘so mind-bogglingly stupid that it assumes that if you can’t see it, then it can’t see you.’

The attitude of our judges, individually and collectively, to the problems facing the judiciary and themselves is shocking. They seem to be totally indifferent to what is going on among them and around themselves and the institution they work for and on which their lives totally depend. They don’t seem to be moved by the weaknesses of their institution and the transgressions of their fellow judges. They think this is something that doesn’t affect them. But what they are forgetting is that the conduct of their fellow rotten judges threatens the purity of the whole undertaking. What does this mean for them? It means that if the whole institution is seen as being rotten because of those rotten judges, their goodness will soon be reduced to nothing. And when society turns against the whole judiciary, they will not be spared, it will be too late for them to say ‘I was not involved…It was so and so who did this and that.’ As Edmund Burke once said, “The only thing necessary for the triumph of evil is for good men to do nothing.”

Truly, the only thing necessary for our judiciary to continue rotting is for good judges and other judiciary officers to do nothing. But worms do not just grow anyhow and anywhere; they grow in something rotten. Our judiciary is rotten. And because it is rotten, it is a good environment for rotten judges with their rotten and stinking deeds.